Ever since June 29, when the Supreme Court ordered new arguments in the Citizens United v. Federal Election Commission case for Sept. 9, some lawyers and ethics experts have wondered whether former Solicitor General Theodore Olson, now with Gibson, Dunn & Crutcher, should remain in the case. He argued for Citizens United in the first argument March 24, and let it be known he would play the same role in the re-do.
Questions were raised because the Court, in its order for new arguments, explicitly stated it wanted to consider a new question: whether a portion of the 2003 ruling in McConnell v. Federal Election Commission should be overruled. That’s the landmark decision that upheld almost all of the Bipartisan Campaign Reform Act, better-known as McCain-Feingold. And who argued in defense of the law on behalf of the government in the McConnell case? Olson, as SG. Now he is on the opposite side, arguing against the law, and, presumably, the McConnell precedent. Olson was set to file his brief late on Friday.
